Personal mitigation to be taken into account when deciding a sanction will be outweighed by the importance of maintaining public confidence in the…

Executive summary

Following a finding of gross misconduct, personal mitigation to be taken into account when deciding as to sanction will be outweighed by the importance of maintaining public confidence in and respect for the police service. The Administrative Court so held in an application for judicial review of the decision of a Police Appeals Tribunal (PAT) to uphold the decision to dismiss the claimant.

Background

In early 2012, the claimant, a superintendent with the Metropolitan Police (MPS) was transferred at very short notice to replace a borough commander removed due to grave concerns about the borough’s police performance. The role was very pressurised and involved responsibility for reducing crime, increasing detection rates and building effective community and local business relationships, all with a reducing budget. The claimant worked very long hours and achieved considerable success, despite medical problems recorded from early 2010 (not disclosed to senior colleagues) and later described as post-traumatic stress disorder and “burn-out syndrome”.

Between spring 2012 and December 2013 five allegations were made against the claimant. Four related to inappropriate sexual conduct, three involving MPS civilian employees and one the head of an important local public body. The fifth related to misuse of a money voucher. The four allegations relating to sexual conduct were said to amount to unprofessional and inappropriate behaviour breaching the Standards of Professional Behaviour (the Standards) relating to ‘authority, respect, and courtesy’ and ‘discreditable conduct’. The fifth, following explanation, proceeded as ‘orders and instructions’ and ‘discreditable conduct’ and not ‘honesty and integrity’.

The claimant initially denied the allegations and the matter was set for a misconduct hearing. At that hearing, the claimant admitted his conduct amounted to misconduct, leaving the panel to decide whether the conduct amounted to gross misconduct and the appropriate sanction.

The panel

The panel determined that the claimant’s conduct amounted to gross misconduct. They concluded that each of the first four allegations was in itself serious enough to amount to gross misconduct and that the five allegations taken together also amounted to gross misconduct. The fifth allegation by itself amounted to misconduct.

The panel noted the claimant’s extensive personal mitigation. There were character testimonials from serving and former police officers praising the claimant’s abilities as a senior officer. In addition, there were statements from a number of local politicians and community and religious leaders evidencing the claimant’s rare combination of ability regarding both policing skills and softer relationship skills with the community. Particular emphasis was placed on statements from the present and former local MPs and prominent members of local government describing the claimant in glowing terms.

The claimant’s medical situation was also considered, as were the financial consequences of dismissal. Taking into account earlier military service, the claimant was only months from completing 30 years’ pensionable service. Dismissal before reaching that milestone came at a cost of almost £190,000.00 in terms of the maximum available lump sum.

The panel referred to the Home Office guidance making clear that the rationale behind the Standards is the maintenance of public confidence in the police service. They accepted that none of the women had suggested that the claimant’s conduct had sexual overtones and accepted a submission that the conduct was “puerile, stupid and deeply unworthy of any rank, especially [the claimant’s] senior position”.

The panel considered the decision of the Court of Appeal in Salter v Chief Constable of Dorset [2012] EWCA Civ 1047, holding that the claimant’s personal mitigation was of necessarily limited potential against the backdrop of the purpose of misconduct proceedings being the maintenance of public confidence in the police service. Despite giving the claimant credit for his admissions, the panel nevertheless concluded that the conduct was so serious, and had discredited the MPS to such an extent, that dismissal without notice was the only appropriate outcome.

The claimant appealed to a PAT.

The PAT decision

The PAT’s role was to consider whether the panel’s decision was unreasonable, not what sanction they would have imposed had they been the panel.

The PAT rejected the claimant’s submission that any limitation on the weight to be given to personal mitigation in cases of police misconduct related only to cases involving dishonesty or lack of integrity, rather than being of general application. The PAT interpreted the decision in Salter accordingly and rejected the argument that the panel had misdirected themselves. The PAT noted that the character evidence had been extensive and referred to submissions made regarding the loss of pension suffered by the claimant, but did not regard the panel decision as capable of being impugned.

The claimant sought to challenge the decision to dismiss by way of judicial review, seeking to quash the PAT decision and replace it with a final written warning or remission of the case for re-hearing before a differently constituted PAT.

The Administrative Court decision

The issues for the Administrative Court were:

whether the PAT had misapplied the decision in Salter (and other decided cases referred to) regarding personal mitigation carrying little weight even in the context of misconduct not involving dishonesty;

whether the PAT had erred in its approach to and treatment of the claimant’s personal mitigation and its assessment of the public interest; and

whether dismissal was a grossly disproportionate sanction which no reasonable PAT could have regarded as reasonable.

Holroyde J considered the decided cases in detail. Although many of the authorities related to legal and medical professionals, it was agreed that similar considerations applied to police officers.

The claimant submitted that all the cases applying Salter had been cases involving dishonesty or lack of integrity and that the principle should be confined to such cases. If the PAT’s decision were to stand, then personal mitigation would always have such limited value that there would be no scope for any outcome other than dismissal in any case of gross misconduct.

On behalf of the PAT and the interested party, it was argued that the Salter principle was of general application to all cases of police and professional gross misconduct. Forms of misconduct other than dishonesty or lack of integrity could equally harm public confidence and trust in the police service and it was common sense that personal mitigation must carry less weight before a police or professional disciplinary tribunal than before a criminal court, because police officers or members of the legal or medical professions would generally be able to produce evidence of good character and performance of their duties before the misconduct under review.

The claimant also challenged the PAT for failing to take into account the powerful character evidence of his excellent service of the community, in particular the statements of local politicians expressing the public interest in allowing a good officer to remain in post.

For the PAT and interested party, it was submitted that the key features of the case had to be weighed against the claimant’s long service and otherwise exemplary record. The claimant’s rank required him to set an example to his subordinates and carried an enhanced responsibility to maintain standards. The claimant’s subordinates had been placed in a difficult position in having to report his behaviour, witnesses had been present and one allegation related to misconduct directed at a person outside the MPS. Although dishonesty was not involved, the claimant’s behaviour had been wholly inappropriate and the very opposite of the example the claimant should have set as a senior officer. His conduct had damaged the standing of the MPS in the eyes of an important community body. As to the loss of pension entitlement, a senior officer with many years service plainly had more to lose than an officer of junior rank and fewer years of service, but that was not a reason for imposing a lesser sanction where dismissal was appropriate.

The judge was not persuaded by the claimant’s arguments for limiting the Salter principle to cases involving dishonesty or lack of integrity. The judge noted that “public confidence in or respect for the police service may be seriously harmed by many forms of misconduct, not all of which involve dishonesty or lack of integrity”. He observed that the fundamental reason why personal mitigation could carry only limited weight regardless of the nature of the gross misconduct is that the purpose of imposing the sanction is not primarily punitive – its purpose is to maintain public confidence in and respect for the police service.

In a paragraph 66, meriting recital in full, the judge stated:

“In my judgment, the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under consideration. What may vary will be the extent to which the particular gross misconduct threatens the preservation of such confidence and respect. The more it does so, the less weight can be given to personal mitigation. Gross misconduct involving dishonesty or lack of integrity will by its very nature be a serious threat: save perhaps in wholly exceptional circumstances, the public could have no confidence in a police force which allowed a convicted fraudster to continue in service. Gross misconduct involving a lack of integrity will often also be a serious threat. But other forms of gross misconduct may also pose a serious threat, and breach of any of the Standards may be capable of causing great harm to the public’s confidence in and respect for the police”.

The judge pointed out that personal mitigation must of course always be taken into account and noted that whether dismissal was necessary would be a fact-specific decision, the appropriate outcome depending “on an assessment of all the circumstances, with proper emphasis being given to the strong public interest in the maintenance of respect and confidence in the police and consequentially less weight being given to personal mitigation.” It was noted that the claimant’s long and exemplary service had been taken into account and balanced against the need to maintain public confidence and respect.

The claim for judicial review failed accordingly.

Comment

This case usefully reinforces the fundamental importance of the Standards in maintaining public confidence and respect for the police service. The end of the claimant’s distinguished career of police service was very sad but “high rank and long service carry with them responsibilities…: and the maintenance of public confidence and respect in the police service may mean that a high-ranking officer must suffer a harder fall than would a junior officer in similar circumstances.”

So, despite the claimant’s long and distinguished career and the particular circumstances in which his gross misconduct occurred, the original decision of the panel to dismiss, upheld by the PAT, was beyond challenge.

For further information about Weightmans or any of the issues in this update, please contact Nick Peel, Partner on 0151 242 9453 or by email at nick.peel@weightmans.com